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Andhra High Court · body

2001 DIGILAW 1134 (AP)

Bhykya Naraia v. State Of A. P.

2001-09-28

V.ESWARAIAH

body2001
V. ESWARAIAH, J. ( 1 ) THE sole accused, who murdered his own son, had filed this Criminal Appeal against the judgment dated 22-01-1996 made in s. C. No. 379/1993 on the file of the learned sessions Judge, Warangal, in convicting him to suffer rigorous imprisonment for a period of 7 years of offence under Section 304 part-I IPC. ( 2 ) BRIEF facts of the case are that: the accused is the resident of Patha Thanda h/o Narayanapuram. He is living with his youngest son. On 07-07-1992 evening on the occasion of "datudu" festival in their village he brought a goat and cut and shared the meat among the family members. In that connection his son (deceased) asked his father (accused) to given one such share to his farm servant but the accused refused for the same and in that connection the accused picked up a quarrel with his son and due to intervention of others it was stopped. Again in the same day evening at about 8. 00 p. m. the accused picked up quarrel with his son with regard to distribution of the meat goat and there was a verbal exchange of the scolding and the accused stabbed his own son on the left part of the chest in front of the house by saying that he would kill him. In order to avert further stabbings from his father, the deceased caught hold of the hand of the accused, in that process the deceased received knife injuries on his little finger of the left hand. At that time, wife of the deceased and some others were present. Immediately the deceased - Bhukya Swamy was shifted to the mahabubabad Police Station in a bullock cart. The Sub-Inspector of Police recorded the statement of the deceased, which is marked as Ex. P-8. Based on the said statement, FIR (Ex. P-10) is registered. Thereafter, the deceased was sent to the government Hospital, Mahabubabad. The duty doctor expressed his inability to treat the deceased and on his advice, the deceased was shifted to MGM Hospital, Warangal. The deceased died while undergoing treatment. After the death of the deceased, the section was altered to 302 IPC from 307 ipc. Inquest was held over the dead body and the doctor made autopsy over the dead body. After examination of the prosecution witnesses, the accused was examined under section 313 Cr. The deceased died while undergoing treatment. After the death of the deceased, the section was altered to 302 IPC from 307 ipc. Inquest was held over the dead body and the doctor made autopsy over the dead body. After examination of the prosecution witnesses, the accused was examined under section 313 Cr. P. C. The plea of the accused was one of total denial. After the trial of the case, the learned Sessions Judge held that the accused is guilty for the offence under section 304 Part-1 IPC and sentenced him to suffer RI for a period of 7 years. ( 3 ) P. W. 1 is the brother-in-law of the deceased i. e, the brother of the wife of the deceased. He deposed that immediately on receipt of the information about the stab injuries received by the deceased he rushed to the place of the deceased and he accompanied the deceased while he was being shifted to Mahabubabad Government hospital. He stated that the deceased narrated the entire incident to the Police at mahabubabad Police Station and he stated that while giving his statement before the police, the deceased was in a conscious state and that the police obtained his signature on the statement. He spoke about shifting of the deceased to the Government Hospital, mahabubabad and from Mahabubabad to warangal by train. While they were travelling on the train, on enquiry by P. W. 1, the deceased told him that his father (accused) stabbed him on that day and on that day his father was in his house. In the cross- examination, he stated that the deceased was living with the accused. He stated that the deceased was unconscious while travelling by the train but again he stated that when he was being taken to the doctor at mahabubabad, he was talking and he was not unconscious. P. W. 2 is the brother of the deceased. He deposed that on receipt of information about the injuries received by the deceased, he rushed to his house and found the deceased lying and he was alive and he was having a stab injury on the left side of his chest. P. W. 2 is the brother of the deceased. He deposed that on receipt of information about the injuries received by the deceased, he rushed to his house and found the deceased lying and he was alive and he was having a stab injury on the left side of his chest. In the cross-examination, he stated that on the date of the incident there was a festival called datudu and a goat was slaughtered and the meat goat was distributed among the family members and he received a portion of the meat only during the process of the distribution, there was an altercation between the deceased and the accused and he was present at that time. He advised them not to quarrel for the meat and after that the deceased and the accused went away from that place. On the same day evening he received the information that the deceased had received injuries. ( 4 ) P. W. 3 is the wife of the deceased. She deposed that she was present at the time of the incident and on that day there was a festival of datudu and a goat was slaughtered and distributed among the family members as per the custom and they received their share. Thereafter, both the accused and the deceased came home normally and the accused (her father-in-law) informed her mother-in-law that the deceased had abused him in respect of the distribution of the goat meat and then the accused went inside the house and brought a knife and called the deceased that he would kill him with that knife and she witnessed the accused stabbing the deceased on the left side of the chest only once due to which the deceased received bleeding injury and then he was shifted to the Mahabubabad Hospital in a bullock cart and she accompanied the deceased. When they went to a doctor, he advised them to take the deceased to the police Station, as it was a medico legal case. Accordingly, they went to the Police Station, mahabubabad. The deceased narrated the facts to the police and the police recorded his statement and obtained his signature. At that time, the accused was in a conscious state. Then the deceased was taken to the government Hospital, Mahabubabad and on the advice of the doctor, the deceased was shifted by a train to MGM Hospital, warangal. The deceased narrated the facts to the police and the police recorded his statement and obtained his signature. At that time, the accused was in a conscious state. Then the deceased was taken to the government Hospital, Mahabubabad and on the advice of the doctor, the deceased was shifted by a train to MGM Hospital, warangal. ( 5 ) P. W. 7 is a panch witness for the scene of offence. P. W. 8 is a witness for the confessional statement (Ex. P-1) of the accused, which is admissible portion in the panchanama. As per the said confessional statement, knife shown by the accused in the bushes was recovered and the knife (MO-1 ). P. W. 7 is the Sub-Inspector of Police, mahabubabad, who recorded the statement (Ex. P-8) of the deceased on 8-7-1992 at 1. 00 a. m. and the said statement was recorded on the narration of the deceased himself. Again he went to the hospital and recorded the statement Ex. B-9. Based on the statement (Ex. P-8) made by the deceased, FIR (Ex. P-10) is registered. After shifting the deceased to the Mahabubabad hospital, the deceased was again shifted to Warangal Hospital. He proceeded to the scene of offence and conducted the panchanama in the presence of mediator and also drafted a rough sketch of scene of offence, which is marked as ex. P-11 and examined the witnesses and recorded their statements. After receiving the information about the death of the deceased, the section was altered from section 307 IPC to 302 IPC. As per the confessional statement recorded in the presence of P. W. 8, he recovered knife (MO-1 ). He also stated that P. W. 3 was present at the time of the dead body when he visited mgm Hospital at about 10-00 a. m. P. W. 11 is the Assistant Civil Surgeon, Mahabubabad. He deposed that on 08-07-1992 at about 1-30 midnight the deceased was brought to the hospital at that time he was on duty and he observed that stab a injury on the left side of the chest and that the other simple injuries on the left little finger and he gave firstaid and at that time the deceased was speaking and he was in a conscious state. He could not open the chest as he was not a specialist and also there was no blood in the hospital for transmission, and hence, he advised them to shift the deceased to the MGM Hospital, warangal. P. W. 12, who worked as Assistant professor in the Kakatiya Medical College, warangal, had conducted autopsy over the dead body of the deceased between 4-00 p. m. and 5-00 p. m and found the following injuries: " (1) The left web space had cut laceration measuring 3cms. gaping, muscle deep. (2) The outer side of terminal phalanel joint of left little finger, showed cut laceration measuring 2 cms. Gaping, and tendon deep blood clots present. (3) Horizontal scratch of 3 cms. long present, 4 cms. about it right obecranoun process on the back of right elbow. (4) Oblique scratch present on outer side of the left forearm measuring 7 cms. x 1 cm. Blood clots present. (5) An oblique scratch of 5 cms. x 0. 1 cm. blood clots present over the front left arm. On sutured wound present 5. 5 cms. lateral to mid chest line on 16. 5 cms. below left collarbone with 3 intact sutures. There is a cut of intercostals muscles between 5th and 6th rib, the spleen cut, the stomach showed perforation of either walls, posterior surface 3 cms. anterior side and 0. 5 cm. stomach is empty. " ( 6 ) HE deposed that the injury on the chest is sufficient in the ordinary course of nature to cause death. ( 7 ) THE learned Counsel for the appellant submits that as per the evidence of P. W. 1 (brother-in-law of the deceased) P. W. 3 (wife of the deceased) was not there in the house of the deceased but she was in her parent s house, and therefore, evidence of P. W. 3 cannot be considered and even otherwise the statement of P. W. 3 was not recorded under Section 161 Cr. P. C. because Ex. P-1 was no ther statementand it was not recorded under Section 161 Cr. P. C. If the evidence of p. W. 3 is discarded, the other evidence available on record is only the statement of the deceased, which is not corroborated by any other evidence, and the doctor was also not stated by means of which weapon stab injury was caused. P. C. If the evidence of p. W. 3 is discarded, the other evidence available on record is only the statement of the deceased, which is not corroborated by any other evidence, and the doctor was also not stated by means of which weapon stab injury was caused. In the absence of proof that the accused stabbed the deceased with m. 0. 1, the accused is entitled for the benefit of doubt and should be acquitted. ( 8 ) THE learned Public Prosecutor states that here is the case where father himself stabbed his own son due to a small altercation caused in the same day evening and it being a festival day a goat was slaughtered and the meat was distributed among the family members. When the deceased asked for a share to his farm servant, the accused refused to do so on the ground that a farm servant is not a family member and in that connection in the same day evening the accused stabbed his own son and his own son gave statements which were recorded in Ex. P-8 and P-9. In view of the death of the deceased, the said statement must be treated as a dying declaration which is admissible in law and the said statement (Ex. P-8) is corroborated by P. Ws. 1 and 3. He further stated that in the first statement as stated by the deceased in ex. P-8, the wife of the deceased was also present at the scene of offence and the inquest panchanama was also speaks about the presence of P. W. 3 at the scene of offence. P. W. 3 deposed in her evidence that she was present at the time of the incident and that she accompanied the deceased while he was being taken in a bullock cart to Mahabubabad police Station and then to the Government hospital, Mahabubabad. P. W. 2 deposed that there was an altercation between the deceased and the accused on that evening and after hearing cries from the house of the accused, he went there and found the deceased lying with the injuries which was bleeding on the left side of the chest. The other circumstantial evidence is that as per the confessional statement of the accused under Ex. The other circumstantial evidence is that as per the confessional statement of the accused under Ex. P-6 in the presence of the P. W. 8, the knife (MO-1) was recovered and the cumulative effect i. e. , totality of the evidence is put together, there is no other scope for causing the death of deceased except the stab injury caused by the accused himself. ( 9 ) AS against the evidence available on record as Ex. P-1, P-8 and the dying declaration, the solitary statement of P. W. 1 that his sister was in their house cannot be believed that his sister - P. W. 3 (the wife of the deceased) was not in the house of the accused for the reason that P. W. 3 emphatically deposed in her evidence that she was present at the scene of offence. Therefore, the overall cumulative evidence available on record i. e. , P. W. 1, P. W. 3, dying declaration of the deceased in Ex. P-8 coupled with the confessional statement of the accused in the presence of P. W. 8 and recovery of m. 0. 1 and doctor s evidence go to show that the prosecution has proved the guilt of the accused beyond all reasonable doubt. Therefore, I do not find any illegality in the order dated 22-01-1996 made by the learned sessions Judge, Warangal, and the appeal accordingly fails. The accused is held guilty for the offence under Section 304 Part-1 IPC. In so far as the sentence is concerned, taking the old age of the accused and without any premeditation and motive to cause the death of his son, got himself angry and caused the death of his own son, and therefore, I am inclined to reduce the sentence from RI for 7 years to RI for 3 years. The accused is entitled to set-off of imprisonment, if any, already undergone. Criminal Appeal is accordingly dismissed.